Walker v. Bank of Missouri

8 Mo. 704 | Mo. | 1844

Tompkins, J.,

delivered ihe opinion of the Court.

This was an action of assumpsit, brought in the Court of Common Pleas of St. Louis county, by tl\e Bank of the State of Missouri, against John K. Walker* as endorser of a note made by William Carr Lane, payable to Walker’s order. Judgment was given for the plaintiff, to reverse which Walker appeals to this Court!

The note was read in evidence by the plaintiff. It is in these words :

“ Four months after date, I promise to pay to the order of John K. Walker, at the Bank of the State of Missouri,'in the state of Missouri, two hundred and fifty dollars, without defalcation, and for value received.

(Signed) _ “ Wm. Carr Lane.”

It was endorsed — “Pay to the order of Thornton Grimsley—

“John K.Walker.”

“ Pay to the Bank of the State of Missouri — Thornton Grimsley.”

The plaintiff then produced Andrew Elliot as a witness, who testified, that he was a notary public, and, as such, made the protest of the said note, which protest is set out in the bill of exceptions; and that, on the day of the protest, he presented the said note for payment, as in the protest is stated, and that he gave notice of the dishonor of the note to the defendant, by putting notice thereof into the post-office at St. Louis, addressed to the defendant, on the same day with the making of the protest. A paper being shown to the witness, which paper will hereafter be set out, he testified, that the paper thus shown to him was the notice put into the post-office by him; and he further stated, some days after the protest of the note, he met the witness in the street of St. Louis, and was asked by the witness if he had protested a note on which he (the defendant) was endorser? and being told that he had, the defendant produced to the witness a paper recognized by the witness as the notice of the protest, and asked him if he intended that as, a notice of the protest? The witness answered in the affirmative. The protest was given in evidence. The notice was also given in evidence, and was in the common form. It ivas subscribed as follows: — “Your obedient servant, -, notary publicand directed to John K. Walker, near St. Louis, Mo. The name of the notary ivas not subscribed to the notice, but the place for his name was left blank. No objection being made to the notice except the want of a signature, it is not set out here.

The defendant, after the evidence was closed, moved the eoúrt to decide (the cause being submitted to the court) that the plaintiff could not recover in this action. The court refusing to make this decision, the defendant excepted. After verdict for the plaintiff, the defendant moved the court to grant a new trial; because — 1st, The verdict is against evidence; 2d, It is against law; 3d, It is without sufficient evidence; 4th, The suit is on an endorsed note, against Walker as endorser, and the only evidence of the non-payment of the note by the drawer is, that the notary who protested the note sent the defendant, through the post-office, the form of a notice, without signature. The Court overruled this motion, and the defendant excepted. .

The appellant makes these points:

1. That the Bank was not entitled to recover on the evidence given; 1st, Because there was no legal evidence that the note was diecounted at the bank; and, 2d, Because there was no legal notice, or waiver of notice.

1st. The 29th section of the act to charter the Bank of the State of Missouri, p. 19 of the Session Acts of 1836-37, provides, that “All hills and notes, whether under seal or not, at any time discounted by the said bank, shall be, and are hereby, placed upon the same footing as foreign hills of exchange, so that the like remedy shall he had for the recovery thereof, against the drawer or endorser thereof, and with like effect, except so far as relates to damages.” The form of this note shows, that it was made for the purpose of being discounted; or it may he said, at least, that if it had been made with an intention of getting it discounted, it would have been made in the form in which it here appears : it is endorsed by Walker to Grimsley, and by Grimsley to the Bank. This endorsement gives the Bank, prima facie, the absolute property in the note; and he who seeks to divest this p-ima facie title, must produce evidence for that purpose. The appellant has produced no authorities to maintain his position, and none can he expected or required to prove that this endorsement does prima facie give the Bank the right of property in this note.

2d. Was the notice of the dishonor of the note sufficient?

Notice of non-payment, or non-acceptance, must, in general, come from the holder of the bill or note, and it should he given by some servant, or agent, who will be competent to prove it. To the same purpose, two cases decided by .this Court — Glasgow vs. Pratte, 8 Mo. Rep., 337, and Glascock vs. Bank, 8 Ibid., 444 The notice proved, in this ease, to have been put in the post-office for Walker, was not signed by any person; then it was given by no person, either principal or agent.

The judgment of the Court of Common Pleas is reversed, and the cause remanded.